dotCommonweal

Hobby Lobby wins, narrowly.

As you've no doubt seen, in a 5-4 decision the Supreme Court decided in favor of Hobby Lobby, which means that the company--along with other similarly structured businesses--will not have to provide its employees with coverage of contraceptives it objects to. Hobby Lobby, joined in its suit by Consetoga Wood Specialties, argued that the Affordable Care Act's contraception mandate violated the Religious Freedom Restoration Act. According to RFRA, in order for the government to impose a potential religious burden on a person, it must be advancing a "compelling governmental interest" and it must use "the least restrictive means" possible. The Court ruled that while providing contraception coverage to employees is a compelling interest, the mandate fails to pass the "least rectrictive means" test.

Instead, the Court held, the government could pay for contraceptives directly. Or--and this pertains to lawsuits brought by religious employeers--it "could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate." The majority continued: "That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests." Perhaps a version of that accommodation will be reworked for businesses like Hobby Lobby.

Justice Ginsburg wrote the main dissent (there were three), and she was joined by Justices Sotomayor, Breyer, and Kagan (in all but one part). Ginsburg criticized the majority for the "startling breadth" of its decision. The ruling means that any business "can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs," she wrote. "The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations' employees and covered dependents."

The ruling itself is quite narrow. First, it applies only to businesses defined by by the IRS as "closely held." Such companies have more than half the value of "outstanding stock owned...by five or fewer individuals at any time during the last half of the tax year." Second, the ruling pertains only to the contraception mandate. Employers claiming religious objections to covering, say, blood transfusions, cannot exclude such procedures from their employee health plans. Neither will racial discrimination be permitted: "The government has a compelling interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to acheive that critical goal." As noted by SCOTUSblog, "this leaves open the question of whether the government has a similarly compelling interest in preventing discrimination on the basis of sex or sexual orientation."

SCOTUSblog also raised two key questions not settled by the ruling: Can the Department of Health and Human Services offer closely held for-profit businesses the "accommodation" it devised for religiously affiliated employers who object to the contraception mandate? That accommodation, you'll recall, allows such organizations to exclude contraception coverage from their employee health plans, while requiring third parties to provide the coverage to employees who want it. All they need to do is self-certify that they object to covering contraception on religious grounds, and they're accommodated.

That leads to the second question: Some religious organizations (like Notre Dame) have objected that the self-certification process itself creates a substantial burden on their religious freedom--and therefore violates RFRA--because it forces them to participate in a process that leads to employees receiving contraception. Will the Supreme Court agree? Those cases haven't yet made it there. But it won't be too long now.

Update: Have a look at Mark Silk's take. The majority's suggestion that the accommodation balances the government's compelling interest with RFRA's "least restrictive" test means that "Hobby Lobby will prove to be a significant setback for the Catholic bishops and other free exercise maximalists, a good omen for contraception coverage advocates, and a fine result for those interested in a reasonable balance of the interests at hand."

I read the opinion and I think Alito handled all the objectons well and balanced the competing issues appropriately.

Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also consti­tute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contra­ceptives at issue here and, indeed, to all FDA-approved contraceptives.

In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of reli­gious nonprofit corporations while ensuring that the em­ployees of these entities have precisely the same access to all FDA-approved contraceptives as employees of compa­nies whose owners have no religious objections to provid­ing such coverage. The employees of these religious non­profit corporations still have access to insurance coveragewithout cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.

Although HHS has made this system available to reli­gious nonprofits that have religious objections to the con­traceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes analternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objectingparties in these cases is unlawful.

So bottom line, all the HHS has to do is make the same system that they make for non-proftis available to for profits and the situation is resolved.

Instead, the Court held, the government could pay for contraceptives directly. Or--and this pertains to lawsuits brought by religious employeers--it "could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate."

I believe both remedies have been floated, more than once, in various discussions we've had here at dotCom. is Justice Alito a Commonweal Catholic? :-)

Cover contraception under medicare for anybody not eligible through insurance plans. Easy fix

Hi, George, I'd think that would require a pretty substantial change to Medicare, and would also require a massive new Medicare enrollment, so I'm not sure if that's the best way to pursue it. But presumably there are a variety of ways it could be done. And I'd think that pursuing government-subsidized contraception would be a wedge issue that Democrats could use to discomfit Republicans, who would be put in the position of being pressured by part of their base to vote against it.

A friend of mine who is legally much sharper than me noted that the Court didn't particularly break any new Constitutional ground in this decision; it simply interpreted existing legislation (RFRA). His view is that, if RFRA went away somehow, the employer contraception mandate could be resurrected.

I read somewhere fairly recently that RFRA, which is not new legislation (it dates to President Clinton's first term in office), is not considered "settled legislation" by various progressive causes, and that there are court cases working their way through the various appellate processes to try to overturn it. Is anyone familiar with those cases and have a view as to what the prospects are of RFRA being overturned? I assume that, with the current Congressional configuration, legislation that would supersede RFRA isn't a realistic possibility.

Sorry, I didn't phrase that previous comment very aptly. I recognize that today's decision didn't invalidate the employer contraception mandate in its entirety, but only for a relatively narrow band of "closely held" corporations with religious objections to the mandate.

GG: "The Court ruled that while providing contraception coverage to employees is a compelling interest, the mandate fails to pass the 'least restrictive means' test."

Not so! The Court assumed but did not rule re any compelling interest for contraceptive coverage. Because the administration did not even try to show that it pursued the least restrictive means there was no need to argue whether there is a genuine compelling interest.

It's an important distinction. It's not easy to find any reasoning used by the Court when it "ruled" that providing contraceptive coverage is a compelling government interest.

Hi Jim :) I remember worrying when Roberts was chosen by Bush, given he was a conservative Catholic and with his wife a member of the "Feminists for Life" ... it's been mostly downhill court-wise seince then.

Alito ... the dispute is about "the rights of women versus the rights of people.”

Crystal, That statement is your interpretation of Alito's opinion. Your quoted statement is nowhere to be found in the actual text of the opinion he authored. In fact, when he speaks about 'rights' he is exclusively speaking about the 'rights' of the owners of Hobby Lobby as small the group of individuals which they constitute. Whereas, the 'rights of women' you quote are found only in this sentence: women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut.

But, of course, this case was never about the rights of women (and men) to obtain contraception, rather it was just about who would pay for it: the user or some coerced third-party.

By a 5–4 vote on Monday, the United States Supreme Court settled a dispute that Justice Samuel Alito said was “at its core about the rights of women versus the rights of people.” Writing for the majority, Justice Alito wrote, “It is the duty of this Court, whenever it sees that the rights of people are being threatened, to do our best to safeguard those rights. In this case, it is clear that people’s rights were being threatened by women.” .....

Constitutional question: I presume Marsha Coyle (hope I have her name right) will be on "The News Hour" tonight to explain it all to me in some way I can understand. I'm still not clear on why a company can decline to pay for contraception and not a blood transfusion (vaccinations, or any other medical procedures) on religious grounds. What if a closely held company had religious beliefs against having more than one child and viewed overpopulation as a sin? Could it refuse to pay maternity costs for second and subsequent pregnancies?

Religous question: I'm always stymied by suggestions here that the federal government should use taxes (which Hobby Lobby and some posting here presumably pay) to provide contraception. I know we can play theological games about degrees of collusion and culpability, but if God is going to hold feet to the fire for anyone using or providing contraception, is this ploy really going to fool him? Is there some Scriptural rule about how many degrees of separation your money has to be from the sin it effects before you can be held unaccountable? Or maybe you get to keep a certain distance between you and the flames of Perdition based on how directly culpable you were?

Currently, my primary concern about the ruling is that the contraception mandate is considered a burden. If having one's money pay for things that one finds objectionable an illegal burden on one's religious freedom, does all government spending have to serve a compelling interest via the least restrictive means if someone claims a religious objection?

I am not a lawyer but read the entire ruling (91 pages). I have to agree overall with the Alito side. The decision does not really impact other services like transfusions because different compelling interests could be articulated by the HHS.

Alito said that if this (contraception mandate) was so compelling then why does it not apply to employers with 25 or less employees all of whom are required to pay copays.

Plus, as mentioned before this applies to only 4 of the 20 contraceptives. Employees of both those places will still be able to receive oral contraception, iud's, etc, etc. There were just 4 that were problematic. As for a remedy, as Alito writes:

The most straightforward way of doing this would be for the Government to assume the cost of providing the fourcontraceptives at issue to any women who are unable toobtain them under their health-insurance policies due totheir employers’ religious objections. This would certainlybe less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not aviable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA,are designed primarily for emergency use.

I was perplexed that the U.S. Supreme Court ruled that closely-held private corporations (those with less than 5 stakeholders) do not have to offer contraceptive coverage based on the religious beliefs of the owners. This raises questions.

With respect to the religious beliefs of small companies, why would companies with 6-10 stakeholders be treated differently than companies with 5 stakeholders? Does 100% of stakeholders have to agree? Is a majority vote sufficient criteria to determine the religious belief of the company?

Why would a closely-held corporation (with less than 5 stakeholders) have a right to opt-out of contraceptve coverage for religious reasons, and not publically-traded larger organizations? Is it because it is easier to determine the religious beliefs of a corporation with less than 5 stakeholders, than a publically traded company with millions of stockholders with mulitple religous beliefs? By proxy, large for-profit companies often seek the approval of stockholders for various changes in the company's by-laws.

George D - don't want to re-comment about the 4 contraceptives but this ruling completely ignores medical recommendations and best practices. Fact - the most effective and safest forms of contraceptives fall within that group of 4; some women are not able to use just any form of contraceptive and their only effective choice is on of the 4; these choices are not cheap....can run $1200 which is as much as some women make in a month if they are working a minimum wage job. It is really a disservice by SCOTUS to think that, just because some contraceptives are covered, then women have choices and this ruling does not penalize them.

But, granted, this ruling has nothing to do with medical science, etc.

Yes, that issue is not in dispute. At issue is who should have to assume costs for these four. And there are competing interests between religious objections and the efficacy of the medication for its intended purpose.

As I read it, under the law the HHS is supposed to find the "least restrictive means of furthering the governmetn interest". (assuming it is a compelling government interest and it is a bit difficult for the government to argue it is because it (the contraceptive mandate) is exlcuded from the subset that requries grandfathered policies to include the very provisions under consideration). So, as I understand it, the government is trying to argue that Hobby Lobby should be mandated to provide something that grandfathered plans don't have to!

The objecting parties contend that HHS has not shown that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that support that view. As we have noted, many employees— those covered by grandfathered plans and those who workfor employers with fewer than 50 employees—may have nocontraceptive coverage without cost sharing at all.

HHS responds that many legal requirements haveexceptions and the existence of exceptions does not initself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be outweighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly significant protections.” 75 Fed. Reg. 34540 (2010). But the contraceptive mandate is expressly excluded from this subset. Ibid.

But that aside, the least restrictive means is for the government to cover it themselves. I don't see how this is a problem. Everybody goes away with what they need.

But I don't understand the American healthcare system. It seems far more simple to have one government run insurance company paid through by taxation that provides the full range of medical care for people. If people don't want to have abortions or use certain drugs, then don't but they should be offered.

Geez - so, now the administration has to somehow pass a requirement that the government will pay for these 4 contraceptives........and does anyone really think that Congress would pass that sort of accomodation?

Congress that has to have the Hyde Amendment reinforced and redone every time this issue comes up; the least active Congress in the history of US Congresses.

Finally, it really is amusing - SCOTS says...let the government pay for it. Easy to say; difficult to make it happen.

Well one thing is certain looking at the language of this ruling, the Little Sisters are facing an uphill battle in their suit and I would not be surprised if they lose 9-0. If I recall correctly, another remedy from Alito was precisely the one the government gave to non-proft religious groups. So presumably, there is not constitutional issue with that arrangement.

The issue with Viagra is that it is not preventative and that was the criteria used to decide which drugs would be covered (btw Viagra is not covered under most provincial plans in Canada and so is either out of pocket or private reimbrsement). I just googled it.....not personal experience...yet...

Those who advocate that the government take over all of health care ought to take a look at the Veterans Administration hospitals. Remember, if the government runs all of health care, there will be very little recourse for problems we are reading about at the VA facilities. Sounds like a nightmare to me.

I believe the following excerpt from Justice Alito's summary of the particulars of the opinion
being discussed points to to what can reasonably be described as a near farcical lack of
common sense.

---------------------------------------------------------------------------------------
The principal argument advanced by HHS and the principal dissent regarding RFRA protection
for Hobby Lobby,Conestoga, and Mardel focuses not on the statutory term “person,” but on
the phrase “exercise of religion". According to HHS and the dissent, these corporations are
not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent,
however, provides any persuasive explanation for this conclusion. Is it because of the
corporate form? The corporate form alone cannot provide the explanation because, as we
have pointed out, HHS concedes that nonprofit corporations can be protected by RFRA.
---------------------------------------------------------------------------------------

It was in point of fact Alito and friends who recently utterly redefined the term "person"
to an extent to which it no longer has reasonable ties to reality. Words are not merely toys
for debaters, particularly ones utterly disconnected from day to day reality, they are one
of the more significant and useful tools with which we move ourselves forward.

Any confusion by HHS over "for profit" vs "non-profit" organization has nothing whatever to do
with religion. The confusion exist primarily if not exclusively due to the blatantly
obvious fact most "non-profits" exist solely to serve the financial goals of "for profits"
institutions, a reality recently made likely to endure thanks to these same "Justices".

The Greens are fabulously wealthy and doing what they damn well please. And that's really
how this all came about. Is it possible to be fabulously wealthy and Christian? Now
there's a question!

I am concerned about the intimate relationship between CORPORATION and RELIGION. In the USA this is further complicated by the relationship between Corporation and State (almost synonomous these days).

I think that the common denominator is POWER.

When I was in Rome last spring a free exhibit in the Braccio di Carlo Magno museum was being advertised in St. Peter’s Square. Entitled “Verbum Domini II” God’s Word Goes Out to the Nations: the exhibit brings together over 200 artifacts to tell the history of the Bible across the globe.

It was a beautifully displayed depiction of the spread of Scripture (both the Old and New Testament) around the world. I loved seeing a replica of the Rosetta stone, fragments of the Dead Sea Scrolls, and the old books. What was lacking, for me, was any sense of what the heart of this message of Scripture is. Only the mission of spreading the Word, whether it be through books or digital media. NO idea of what this message is or how it is to be LIVED. As if one can read a book and “get it”.

When I got home I found out that this Vatican exhibit is the private collection of the Green family, founders of Hobby Lobby. The Green Collection is the world’s largest private collection of rare biblical texts and artifacts. The corporation also sponsors the Creation Museum in KY, which argues against evolution.

It was in point of fact Alito and friends who recently utterly redefined the term "person"
to an extent to which it no longer has reasonable ties to reality.

MightBe,

You are factually mistaken. It is actually the Dictionary Act, which is a law passed by Congress years ago, that defines person to include corporations. And this quote from Alito explains why Congress acted the way it did.

Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.

And he summarizes your point that corporations arent 'persons' like this:

General business corporations do not, separate and apart from the actions or belief systems of their indi­ vidual owners or employees, exercise religion.

To which he responds:

All of this is true—but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.

Respectfully, are you high? You don't walk into any ER in the U.S. and get anything for free, even if you have health care insurance, and you're going to pay a walk-in fee, a doctor's fee, and the cost of the med, which will be jacked up because somebody from the pharmacy has to bring it to you, assuming they even carry it, which they might not. My guess is that this visit would cost you about $300.

You can buy a Plan B or Morning After at the pharmacy for about $50. If you have access to Planned Parenthood, you may be able to get the pill there.

Those who advocate that the government take over all of health care ought to take a look at the Veterans Administration hospitals.

That is a scary thought ... if universal health care program were modelled on VA lines, where the VA hires doctors, owns and runs hospitals and out-patient treatment centers, etc. etc. Universal health care, like Medicare, could simply pay all or part of the health care costs a patient chooses.

On persons, corporations and the RFRA, each diocese is, under that definition, a corporation. And as a corporate entity, the Vatican argues, to get away from law suits and criminal prosecutions, that they are distinct corporate entities and not subsidiaries of Vatican Inc. Talk about fictions!

The point is, the Catholic church, has for at least 1700 years saw itself as a corporate entity which is why it adopted "basilicas". Gradually civil society transferred governance of the churches to Bishops. Hence discussions around who "governs" the Church. To the extent the church is a corporate body, the contours and scope of it needs to be transparent and clear.

As for the private collection of the Green's, I do not necessarily have a huge problem with it. Artifacts and findings are frequently sold and placed under copyright infringment and protections. As long as there is access to these artificacts for research or even edification. Speaking of which, the Vatican, has not allowed public access of its library surrounding certain ecclesiastical leaders like Pius XII. Are lay Catholics not shareholders, in that sense, of the Vatican. Who owns it? Who is it accountable to? It is a distinct state but is not democratic.

Gene - Bruce's two comments can easily be fact checked (as you did) and you will arrive at the reality that nothing he said has any resemblance to factual information. (like many men, they have an opinion that they cry loudly but they don't know anything about reproduction, contraception, etc.)

His snide and sarcastic reply about the effectivenss of certain contraceptives says it all.

It really is a waste of time to comment when you are merely shooting from the hip to hear yourself talk.

Walk me through this then. An 18 year old unemployed girl parties one night following her graduation and does some things that she regrets and fears for possible pregnancy. Stressed out, she goes to emerg and explains to the er folks what happens and that she is worried about pregnancy. She DOES not want her parents to know because here will be serious repercussions. So, please, she pleads, don't run this through their insurance (under which she might be covered). They don't give her an exam, a pill, and send her on her way?? Or what if her parents are on Social Security and do not have insurance.

I seems to be that this would fall under approprate e.r. procedures for which they would just bill medicare just like they do when anybody who lacks insurance comes through the door. They are legally mandated to provide emergency services...period....Any follow up woud be different.

LOL...Seriously.....Tell me this does not happen. I know for a fact that e.r. has the morning after pill that they dispense. The only question is, would this or would this not fall under what is deemed an emergency use or does she have to claim rape or coercion or something like that?

I am not saying that it is a policy solution, I have already said the policy solution was a single payer insurance system.

The policy solution can also be the arrangement the government made for non-profits to private entitites.

The policy solution can also be for HHS to cover any and all drugs that peoople who have religious reasons for objecting to under their coverage.

The LEGAL issue is that HHS did not try to find the least intrusive means. In this case, not intruding on the religious liberty of another entitity.

Bottom line, political and not legal problem.

Besides, another policy solution in the funding by tthe HHS of women health clinics to provide confidential, services to women. Funding would incude access to drugs and abortion for those who use that service. I believe these exist.

No, Ryan. The dispute is over who is going to pay for the 4 out 20 contraceptives that the insurance company provides. The Hobby Lobby said it would not pay for those 4 as they considered them abortificients and violated their conscience. Nobody said that women should not have access to them. It was who is going to have to pay. I suppose, using Catholic moral reasoning, the Green's felt that they would be materially cooperating in a sin and the Catholic church agrees so they are not out in left field. They did not see contraception quite the same way which is an interesting aside.